How the Copyright Claims Board can help retailers in disputes
It is no secret that the creation of original, innovative designs and products is at the heart of the gift industry. Maybe that is why there are so many knock-offs and copycats.
There has always been an avenue of recourse. However, it is now much more accessible to everyone, even new and small companies. Copyright law covers works that are created by an author and fixed in a tangible form of expression. These works may be in the form of books, screenplays, pattern designs, fabric/ textile designs, jewelry, architectural plans, sculptures, paintings, photographs and drawings — and that is not even the complete list. So it is no wonder that as technology has advanced, it has become even more difficult to enforce and protect the works that one creates.
At the end of 2020, Congress passed legislation that directed the Copyright Office to create a Copyright Claims Board (CCB). This three-person board allows for an alternative resolution to copyright claims up to $30,000.
Until the creation of the CCB, if after attempting to come to some sort of informal resolution, someone wanted to enforce their copyright ownership, the only recourse was filing suit in federal court. For most, that seemed unlikely. With the creation of the CCB, the potential for a final resolution exists.
FEATURES OF THE CCB
1. Everyone has access. Regardless of whether you have an attorney or not, you may have access to the CCB. These proceedings were designed to be simplified so that anyone can come before the CCB.
2. The procedures are simplified. The proceedings are online and aim to be more time and cost effective. Participants in CCB proceedings are only required to provide limited basic documents and information, as opposed to the more complicated and costly process of exchanging evidence in federal lawsuits. Furthermore, CCB proceedings do not allow for formal motions used in federal court; All hearings are conducted remotely via video conference.
3. Participation in the CCB is voluntary. The claimants, both the one filing and the one responding, can decide whether to participate in the CCB proceedings. Participation is not compulsory; this means that either party may opt out. If the responding party opts out, then the claimant may still file suit in federal court.
4. The CCB only hears certain claims. The CCB’s jurisdiction is limited to specific claims. In federal court, all related claims may be brought; this is not so with the CCB. There are only three types of claims that may be brought before the CCB:
a. Copyright infringement claims
b. Claims seeking to clarify that activities do not infringe copyright; and
c. Misrepresentation claims in notices sent under the DMCA (Digital Millennium Copyright Act).
5. The CCB is made up of three copyright law experts. Copyright Claims Officers are experts in copyright law, making them well qualified to determine copyright matters involving various types of works and issues that arise from the above-mentioned types of claims.
6. Monetary damages are capped at $30,000. A party cannot bring a claim before the CCB seeking more than $30,000 in total damages. If a party is successful in their claim, they may choose to recover either statutory damages, which is determined by the law, or actual damages, which is calculated based on factual evidence. Most of these amounts for a successful party would be less than what they would be able to receive if they were to try the case in federal court. By comparison, statutory damages can be up to $150,000 for each work infringed if the infringement was committed knowingly and deliberately.
7. CCB procedures include safeguards against abusive practices. If a party brings a claim in bad faith, they may be ordered to pay the other parties reasonable costs and attorney’s fees up to $5,000. It is within the CCB’s discretion to award higher amounts if the party acting in bad faith shows a pattern of bad faith conduct. The CCB may ban that same party from filing new claims and/or dismiss any pending claims.
8. Parties cannot file an unlimited number of claims. The number of claims that may be brought each year depends on the party filing the claim. If an individual or corporation is bringing the claim, then they can only bring up to 30 claims in a 12-month period. For a solo practitioner, the 12-month limit is 40 claims; for a law firm, the limit is 80 claims.
9. The effect of a CCB finding is different from a court ruling. CCB determinations are posted online and public. However, these findings do not set precedent. In other words, the reasoning used for each case is specific to each situation and is not binding on another case that may come before the CCB. Furthermore, the CCB findings have no impact on other federal court proceedings. After a CCB determination, a party is barred from filing the same claim in federal court.
10. There are limits on appeals of CCB determinations. There are three options a dissatisfied party has when dealing with an unfavorable determination from the CCB:
a. The CCB’s reconsideration of, or a modification to, the determination, but only for a clear error of law or fact material to the outcome, or a technical mistake
b. A request the Register of Copyrights to decide whether the CCB abused its discretion in denying reconsideration
c. In limited circumstances, a review of the determination in federal court.
These are the main features of the CCB. This board is very new, so attorneys and claimants are still learning how this recently developed system within the larger system will operate. There are actions that may be taken before one even must resort to the CCB. Speaking with an attorney who practices in this area so that they may advise you of the benefits and the burdens of each of your options is the wisest, most prudent action to take.
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